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w . v i l l a no v a . e du/thir dc ir c uit_2013/235NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 4327

_____________ UNITED STATES OF AMERICA

v. MICHAEL GIAMO,

Appellant

______________ APPEAL FROM THE UNITED S TATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim . Action No

. 2

- 11

- cr - 00 620

- 001 ) District Judge: Honorable Michael M. Baylson

______________ Submitted Under Third Circuit LAR 34.1(a)

September 11, 2013

______________ Before: RENDELL, JORD AN, and GREENAWAY, JR. , Circuit Judges

.

(Op inion Filed: September 12, 2013 )

______________ OPINION

______________ GREENAWAY, JR., Circuit Judge

.2

Appellant Michael Giamo (“Giamo”) challenges the District Court’s sentence , arguing that the District Court e rred by denying his motion for a downward departure and by failing to appropriately consider several of the factors set forth in 18 U.S.C. § 3553(a). For the reasons set forth below, we will affirm the sentence. I. Background We write primarily for the benefit of the parties and recount only the essential facts. After a jury trial, Giamo was convicted of participating in an arson

- for

- hire scheme, as well as mail fraud and obstruction of justice. The conviction arose from Giamo ’s participation in a conspiracy to burn down his automotive repair business and file a false insurance claim

. While Giamo traveled to Brazil to establish an alibi , Giamo’s co - conspirator , Isael Kniestedt (“Kniestedt”), executed the arson plan , burning down Giamo’s business in return for a share of the insurance money. Kniestedt , after being confronted, began cooperating with investigators, which led to Giamo’s arrest

. At Giamo’s sentencing, the District Court calculated his S entencing Guidelines range to be 198 to 217 mon ths. The Government requested a sentence of 217 months

. D efense counsel moved for a downward departure to the mandatory minimum of 180 months based on U

. S

. S

. G

. § 5H1. 3 , citing Giamo’s mental instability and the abuse he suffered as a child

. Relying on t he same facts, defense counsel also sought a downward variance. The District Court denied the motion for a downward departure , but granted, in3

part, the request for a downward variance

. The District Cour t sentenced Giamo to 192 months , six months below t he bottom of the Guidelines range

.

II. Jurisdiction and Standard of Review The District Court had juris diction under 18 U.S.C. § 3231. We have jurisdiction, pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Following the Supreme Court’s decision i n United States v. Booker , 543 U.S. 220 (2005), the Guid elines are advisory and “appellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’” Gall v. United States , 552 U.S. 38, 46 (2007). Generally, reasonableness c onsists of both procedural and substantive reasonableness. See United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009)

. Here, Giamo only challenges the substantive reasonableness of his sentence

. This Court has held that it will affirm a district court ’s sentence “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568

. The standard of review for variances granted pursuant to 18 U.S.C. § 3553(a) is abuse of discretion. Gal l , 552 U.S. at 46; Tomko , 562 F.3d at 567. III. Analysis Although Giamo argues that the District Court erred in denying his motion seeking a downward departure pursuant to U.S.S.G. § 5H1.3, this Court cannot review this decision. United States v. Jackson , 467 F.3d 834, 839 (3d Cir. 2006 ) ( “ [C]ourts of4

appeals post

- Booker [] have no authority to review discretionary denials of departure motions in calculating sentencing ranges. ” )

. The District Court exercised its discretion, and we may not review its decision to deny Giamo’s downward departure motion. Giamo next argues that the District Court should have downwardly varied by more than six months. Giamo contends that the District Court , in considering the § 3553(a) factors, did not properly “take into account” the continuing effects of the trauma that Giamo expe rienced in hi s childhood (Appellant’s Br. 12 ) , and “ [relied] on improper factors , ” including the facts underlying another arson case being tried that day ( i d

. at 12, 13 )

. Fo r a sentence to be reasonable , the record only has to demonstrate that the District Court considered both arg uments presented by the parties and “‘has a reasoned basis for exercising [its] own legal decisionmaking authority

. ’ ” U nited States v. Merced , 603 F.3d 203, 215

- 16 (3d Cir. 2010) ( quoting Rita v. United States , 551 U.S. 338, 356 (2007))

. Contrary to Giamo’s assertion s , the District Cour t did meaningfully consider the 3553(a) factors, including Giamo’s troubled childhood, his extensive criminal plan ning, and the substantial danger of arson

. Additionally, there is no evidence in the record that the District Court’s cursory mention of another arson case was a consideration in its sentencing decision. The District Court a ppropriately w eighed both Giamo ’s and the Government’s arguments in reaching its sentencing decision.5

The District Court did not abuse its discretion , and Giamo fails to demonstrate that no reasonable district court would have imposed the same sentence for the reasons that the District Court applied. Tomko , 562 F.3d at 568

. We thus find that the District Court’s sentence was not substantively unreasonable. IV. Conclusion This Court has no jurisdiction to review the denial of a downward departure motion. Since we find t he sentence substantively reasonable , we will affirm the District Court’s sentence.